IT IS IMPORTANT when writing about the Carol Burnett-National Enquirer libel decision to say something right off about how awful the Enquirer is, how it is just one step up from the mother-kills-baby-and-puts-it-in-freezer tabloids and that it plays fast and reckless with the truth, not to mention good taste. There, I've said it.
And it is important also to say something really nice about Burnett, to give her all kinds of credit for fighting back, for daring to sue and for putting a consierable amount of money where her considerable mouth is. She was wronged and she made them pay for it. There is something neat about that.
But having disposed of those matters, it is time to note that there is something preposterous about the $1.6 million the jury wants to take out of the hide of the Enquirer and award to Burnett. It is an amount of money pulled out of thin air, a concoction based not on any finding of malice or even of real damage to Burnett. The lady -- and she is one -- got her feelings hurt, but more than that you cannot say for sure.
The item in question, you will remember, said that Burnett had an argument with Henry Kissinger at a Washington restaurant, became boisterous, disturbed other guests, "traipsed" around the place offering bits of her dessert to other diners and "accidentally" knocked over a wine glass on another diner. Burnett was upset because: (1) the item was not true; and (2) it intimated that she had been drinking.
She said she became so upset the day the item appeared that production of the television show she was working on had to be canceled. Burnett, it turns out, is the daughter of two alcoholics and she is herself a teetotaler. She does not drink, will not drink and crusades against alcohol and drug abuse. She had reason to be upset. And now she has reason to feel vindicated.
But the issues here are bigger than even Carol Burnett and her feelings. It happens to be a fact -- an unfortunate fact maybe, but a fact nonetheless -- that the National Enquirer is a newspaper or a magazine. Call it what you will, it is in the same business as The New York Times and The Washington Post or Harper's and The New Republic. It is protected by the very same First Amendment that protects the rest of us and when that First Amendmentt is weakened, it is weakened not only for the Enquirer or, say, for Hustler Magazine, but for all newspapers and magazines as well. There is no asterisk on the Bill of Rights that says, "Does not apply to supermarket tabloids."
But the jury clearly did think that the Enquirer and, maybe Burnett, were special cases. Without any finding of malice, without any proof that Burnett's career had been in any way damaged, with the Enquirer having already run a retraction, the jury handed down a verdict that punished the Enquirer not for sloppy journalism, not for running an incorrect item and not, it appears, for bothering or caring enough to check it out, but for being the foul National Enquirer and for hurting the feelings of the wonderful Carol Burnett. Somewhere along the line, this whole thing got to be a fight between Burnett and the Enquirer when what it should have been was a trial over an item in a newspaper.
That is an important distinction -- as important as the distinction between reality and image. Burnett is an entertainer and not the president of the temperance league. Her reputation is based upon who she is on television, not her private beliefs, and it is precisely for this reason that the jury was so generous in its award. It would have felt far differently about an actress who made her name playing in "Dallas." After all, the Carol Burnett that moved the jury to tears and prompted it to ask for autographs is nothing more than a creation they watch on television.
It's hard to feel sorry for the Enquirer. It had this coming -- at least some of it. As for Burnett, she fought for what she believed and she ought to be commended for it. Nevertheless, the issues that the trial should have hinged on -- malice, real damages -- were hardly present and instead the jury seemed to base its decision on whether the National Enquirer is as nice as Carol Burnett.
It's not -- but then it doesn't have her writers.